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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOHN Q. GRAGGS, 

Petitioner, 

CASE NO. 2:12-CV-190

v. JUDGE SMITH

MAGISTRATE JUDGE KING

WARDEN, LEBANON CORRECTIONAL

INSTITUTION, 

Respondent.

OPINION AND ORDER

On May 30, 2013, the United States Magistrate Judge recommended that the petition for 

a writ of habeas corpus pursuant to 28 U.S.C. 2254 be dismissed. Report and Recommendation, 

Doc.No.37. Petitioner has filed objections to that recommendation. Objection, Doc. No. 41. For 

the reasons that follow, Petitioner’s objections are OVERRULED. Petitioner’s request for an 

evidentiary hearing is DENIED. The Report and Recommendation, Doc. No. 37, is ADOPTED

and AFFIRMED. This action is hereby DISMISSED. Moreover, Petitioner’s request for a 

certificate of appealability is DENIED.

The petition asserts claims of insufficiency of evidence, ineffective assistance of trial and 

appellate counsel, defective indictment, improper jury instruction on accomplice liability and 

juror misconduct. The United States Magistrate Judge reasoned that the claims raised on direct 

appeal, the claims of ineffective assistance of appellate counsel, and the claims of defective 

indictment and juror misconduct were procedurally barred, and that the claims raised on postconviction relief, including the claims of ineffective assistance of trial counsel, were either 

procedurally barred or were without merit. Report and Recommendation.

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Petitioner has filed lengthy objections to those recommendations. He initially complains 

that the Magistrate Judge improperly deferred to the erroneous factual finding of the state 

appellate court, which stated that police found the tip of a green latex glove containing 

Petitioner’s DNA under the victim’s body; according to Petitioner, the evidence indicated that 

police did not observe the glove tip until after they had moved the body and a cushion of a 

nearby chair. See Trial Transcript, PageID# 156-157, 222, PageID# 788-90. Under these 

circumstances, Petitioner contends, the fact that people were going in and out of the apartment 

before police arrived could have explained the presence of a glove containing his DNA. 

Objection, PageID#2004. Petitioner also contends that a liberal construction of his pleadings 

should have recognized an allegation that his attorney failed to notify him of the appellate court’s 

decision denying his direct appeal and failed to notify Petitioner of the time limits for filing an 

appeal to the Ohio Supreme Court; these allegations, Petitioner contends, would establish cause 

for his failure to file a timely appeal to the Ohio Supreme Court. Objection, PageID# 2005. 

Petitioner also again argues that the record establishes that he is actually innocent of the charges 

against him. He presents the same arguments that he previously presented regarding the merits 

of his claims. 

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. The Court 

has specifically reviewed the entire record, including all of the documents referred to by 

Petitioner. The Court is not persuaded by Petitioner’s arguments. Even liberally construing 

Petitioner’s pleadings, nothing in the record supports his claim that he previously alleged, as 

cause for his untimely appeal to the Ohio Supreme Court, that his attorney failed to notify him of 

the appellate court’s decision denying his appeal. See Petitioner’s Traverse, PageID# 1712; 

Exhibit 29 to Return of Writ, PageID# 467. Petitioner’s current allegation to the contrary is 

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unsupported by the record and is not worthy of credit. Further, considering all of the evidence, 

including testimony regarding the location of the latex glove containing Petitioner’s DNA, this 

Court agrees that Petitioner has established neither cause for his procedural default, nor that he is 

actually innocent of the charges against him such that the merits of his otherwise procedurally 

defaulted claims may be considered. The remainder of Petitioner’s arguments are well addressed 

in the Magistrate Judge’s Report and Recommendation. For these reasons, Petitioner’s 

Objection, Doc. No. 41, are OVERRULED. The Report and Recommendation, Doc. No. 37, is 

ADOPTED and AFFIRMED. Petitioner’s request for an evidentiary hearing is DENIED. This 

action is hereby DISMISSED.

Petitioner also seeks a certificate of appealability. When a claim has been denied on the 

merits, a certificate of appealability may issue only if the petitioner “has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is a 

codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484 

(2000). To make a substantial showing of the denial of a constitutional right, a petitioner must 

show “that reasonable jurists could debate whether (or, for that matter, agree that) the petition 

should have been resolved in a different manner or that the issues presented were ‘adequate to 

deserve encouragement to proceed further.’” Id. (citing Barefoot, 463 U.S. at 893). 

Where the Court dismisses a claim on procedural grounds, a 

certificate of appealability should issue when the prisoner shows, 

at least, that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling.

Id.. 

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There are two components to determining whether a certificate of appealability should 

issue when a claim is dismissed on procedural grounds: “one directed at the underlying 

constitutional claims and one directed at the district court's procedural holding.” Id. The court 

may first “resolve the issue whose answer is more apparent from the record and arguments.” Id.

For the reasons stated in the Report and Recommendation and in this Opinion and Order, 

this Court is not persuaded that reasonable jurists would debate whether this Court properly 

dismissed Petitioner’s claims as procedurally defaulted or lacking in merit. Petitioner’s request 

for a certificate of appealability is therefore DENIED. 

The Clerk is DIRECTED to enter FINAL JUDGMENT in this action. 

/s/ George C. Smith__________________ 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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